February 2009: Buddy, Can You Spare a COLA?

After years of effort by many on Capitol Hill, the chance of a significant pay raise for federal judges is slim at best—at least for the foreseeable future. Bad economic times have seriously dimmed public and congressional support for a pay hike for the federal judiciary. Legislation approved by the Judiciary Committees in both the House and the Senate during the last congressional session would have given federal judges a 30 percent salary increase. But the legislation failed to move forward and died at the end of the session. Now, in light of current economic conditions, no matter how many judges step down from the bench or how discordant their pay is compared with that of law school deans and members of the private bar, there is little interest in Congress for paying judges more.

That disappointment is worsened by the fact that Congress has not even authorized a 2009 cost-of-living adjustment (COLA) for the federal judiciary, despite giving a 2.8 percent adjustment to themselves and to all other federal employees. Judges were left with coal in their stocking in December, when a COLA for the federal judiciary was dropped from the final version of the auto bailout bill. A quirk in federal law requires Congress to approve an annual COLA for the federal judiciary affirmatively, whereas a salary adjustment for members of Congress becomes automatic, unless Congress intervenes and denies its members one. (The Federal Bar Association has repeatedly called for the repeal of this unfair approach.)

These events prompted Chief Justice John Roberts to plead to the Congress for a modest COLA when he delivered his year-end report in December. The cost of a COLA for all members of the federal judiciary is an estimated $13 million. Noting in a broader way that the budget of the judicial branch in 2008 totaled $6.2 billion, Roberts observed, "That represents a mere two-tenths of 1 percent of the United States' total budget. Two-tenths of 1 percent! That is all we ask for one of the three branches of government—the one charged ‘to guard the Constitution and the rights of individuals.'"

"Given the judiciary's small cost," Roberts added, "and its absolutely critical role in protecting the Constitution and rights we enjoy, I must renew the judiciary’s modest petition: Simply provide cost-of-living increases that have been unfairly denied! We have done our part—it is long past time for Congress to do its."

In his report, Roberts paid significant attention to cost-cutting measures the courts have undertaken to limit rent, personnel, and costs required for information technology. The measures should save up to $300 million through 2017, Roberts predicted.

U.S. district judges are currently paid $169,300—the same as members of Congress are paid—whereas circuit judges are paid $179,500, associate Supreme Court justices $208,100, and the chief justice $217,400. As this column went to press, it was uncertain whether Congress would include a COLA for judges in the anticipated economic stimulus package or its long overdue government funding measure for fiscal year 2009.

The start of a new Congress provides a fresh start for rebuilding frayed relationships. Perhaps the relationship between members of Congress and the federal judiciary will occur as well. There is work to do on both sides.

Some congressional lawmakers would have appreciated an expression by the chief justice in his year-end report of a greater commitment to reinforce judicial integrity. This commitment is particularly important in light of several incidents involving judicial impropriety that surfaced over the past year as well as the Judicial Conference’s imposition of conflict-of-interest restrictions on "judicial junkets." Several investigations of federal judges for alleged misbehavior were conducted last year or are proceeding; one is an impeachment proceeding.

Unless the federal judiciary devotes greater attention to its own ethical governance, federal judges may face increased scrutiny and unwelcome regulation by the Hill. In fall 2008, Congress passed legislation that restricted judicial acceptance of honorary memberships in country clubs and private clubs valued at more than $50—the same prohibition that already applies to members of Congress. More restrictions may be on the way.